Sun | Jun 20, 2021

Xinyu Addae-Lee | Rights of the biological parent after adoption

Published:Wednesday | May 5, 2021 | 12:05 AM
Dr Xinyu Addae-Lee
Dr Xinyu Addae-Lee
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When the media and constabulary force posted on their social media that young Lamekia Lamont was missing, we all felt our hearts sink for fear of the worst. However, it turned out to be a much different story, which, though not as tragic, still produced concern and despair.

Lamekia Lamont was found in the company of her birth mother, Camille Blair, who explained in an interview with The Gleaner that Lamekia was adopted at a young age by Mr and Mrs Obadiah Lamont. She admitted that she was unable to care for her child at the time and that her mother presented the Lamonts as a solution to the problem. The Lamonts cared for Lamekia and eventually adopted her. Camille was not in Lamekia’s life until last year when they made contact, and she learned that Lamekia was not happy. In fact, she was so unhappy that she made several attempts to take her own life and indicated that she was going to do it again if Camille did not come to save her. So Camille went for her and took her home without the knowledge or permission of the Lamonts.

The process of adoption strips the biological parents of their rights and responsibilities towards the child and places these rights and responsibilities into the hands of the adoptive parents. Therefore, although Camille Blair may feel a connection to the child she gave up for adoption many years ago, she has no right to demand that she be allowed to visit the child or even contact the child much less take the child without the consent of the parents. Her actions, therefore, could very well constitute a criminal offence. This is the reality of the majority of adoptions in Jamaica as there are no provisions safeguarding the child’s ability to contact their biological parents or permitting the biological parent to retain any residual rights towards the child.

CIRCUMSTANCES NOT THE SAME

Biological parents have various reasons for giving their child up for adoption. Therefore, all circumstances cannot and should not be treated the same. Currently, the only provision allowing the biological parent to give conditional consent to the adoption is Section 11 of the Children (Adoption of) Act, which limits this for religious persuasion only. This section specifically indicates that if consent is withheld for the sole reason that the parent does not know the adopter, then the consent with be held to be unreasonably withheld. Therefore, the concept of “post-adoption contact” is not common in Jamaica as the policy is that biological parents are not aware of the identity of the adoptive parents when the adoption takes place through the Child Protection and Family Services Agency, and in the circumstances where the two parties make the arrangements first and then go through with the adoption, the idea of post-adoption contact is not fully explored and discussed. This can lead to frustrations on the part of the biological parent, which may come out later on in the way it has in the story of Camille. There needs to be room for the biological parent(s) to discuss all the possible arrangements for adoption, including contractual or statutory arrangements that would allow them the right to negotiate some sort of access to the child. We need to open our mind to the unique circumstances of each adoption and try to come up with ways to facilitate them.

Adoptive parents are usually the most resistant to the post-adoption contact. However, we must be careful to ensure that the desire of the adults does not overshadow the best interest of the child. They should be counselled to understand and accept the unique way in which their family was formed. Studies have shown that there is a significant benefit to having a child have some form of contact with their biological parents. It is, therefore, important for us to encourage this arrangement instead of continuing to promote the secrecy.

RIGHTS OF THE ADOPTIVE CHILD

More importantly, what are the rights of the adopted child, and when can they claim these rights? Article 7 of the United Nations Convention on the Rights of the Child states that a child has a right “to know and be cared for by his or her parents”. This was ratified by Jamaica in May 1991. How then can the normal procedure be to enter into agreements and arrangements that derogate from the right of the child to know who his or her parents are? Although they may not want to maintain such a relationship, it is a question that one asks at some point in one’s life and should be afforded an answer. Furthermore, knowing your biological origin may assist with your medical history and allow you to know who your siblings are. This information is more valuable than we realise and can go a long way to allow persons to get much-needed screening and intervention for hereditary conditions and prevent persons from marrying their siblings. So in the event that both the biological and adoptive parents opt not to have contact, when should a child be able to enforce this right individually? And should they decide to enforce this right, should they need to go to court to do it, or should it be provided for them in a registry that they can access at a certain age?

There are more questions than answers available right now. But this is an important discussion and the realities of adoption that should not be overlooked. We should keep our minds open to the fact that it is not straightforward, and all parties are not able to process the uniqueness of the situation the same. Those “brokering” adoptions should treat each circumstance as unique, educating the parties about the possible issues that may arise and determining what the best arrangement should be and facilitating the formulation of that agreement. The welfare of the child should always be paramount. Policies regarding this should be influenced by documented studies on the psychological impact of knowing or not knowing your biological origin. The child should have a right to come to their own decision at some point. They should not be bound by the decision of others as it is deeply personal for each individual, and frankly, we should not have the right to take that away from them.

Dr Xinyu Addae-Lee is a medical doctor and attorney-at-law. She practises in both areas and is passionate about advocating for the adoption process to be more transparent, efficient, and family-focused. Send feedback to law.x.jm@gmail.com.